The New York Cannabis Growers and Processors Association (NYCGPA) has submitted their comments on the DEA implementation of the 2018 Farm Bill which threatens to destroy the hemp extract industry.
DEA Interim Final Rule
On August 20, 2020, the Drug Enforcement Administration (DEA) issued an interim final rule on hemp and hemp extracts. The rule served to update the language of the Controlled Substances Act (CSA) to match the new definitions of ‘hemp’ and ‘marihuana’ provided in the 2018 Farm Bill, which legalized hemp.
According to DEA, their ruling “merely conforms DEA’s regulations to the statutory amendments to the [CSA] that have already taken effect, and it does not add additional requirements to the regulations.” A public comment period accompanied the ruling, which remained open until October 20, 2020. DEA has expressed many times throughout the IFR, however, that this comment period was a formality, and that they do not expect any significant changes to take place.
DEA may pretend that their ruling is inconsequential, but it really serves as a coy attempt by DEA to retain authority over hemp and hemp-extract production nationwide. Using certain linguistic inconsistencies, DEA has drafted a ruling which would effectively criminalize hemp-extracts, despite the 2018 Farm Bull ruling.
In their letter to DEA, NYCGPA focused on two main issues:
1) Classification of hemp extracts during processing, or “work-in-progress hemp,” as
2) Classification of “synthetically-derived” tetrahydrocannabinols as opposed to hemp
derivatives with cannabinoids such as Δ8-THC.
The 2018 Farm Bill removed hemp and hemp derivatives from the schedule of controlled substances, defining it as any part of the Cannabis sativa L. plant with a concentration of less than 0.3% Δ9-THC on a dry-weight basis. This means that, according to the Farm Bill, any hemp or hemp-derivative which meets this THC limit is legal to produce and sell.
Hemp extracts during processing
In their ruling, DEA states that “any such material that contains greater than 0.3% of Δ9-THC on a dry weight basis remains controlled in schedule I.” This definition, however, fails to account for hemp processing, where Δ9-THC levels may spike during the extraction and refinement process. This spike in Δ9-THC concentration is inevitable as manufacturers produce cost-effective and cannabinoid-rich oils that serve as ingredients in final products containing less than 0.3%. If DEA does not amend their definition, this would effectively criminalize hemp processing, as processors would not be able to continue their operations without technically handling controlled substances. Unless reconsidered, this definition would effectively destroy the hemp extract industry nationwide.
Delta-8 and "synthetically derived tetrahydrocannabinol"
The ruling also poses an immense threat to Δ8-THC, the hottest growing cannabinoid on the market. Δ8-THC is structurally different than Δ9-THC and is entirely derived from hemp plants. With a concentration of under 0.3% Δ9-THC, it is legal, according to the Farm Bill.
Unfortunately, the DEA IFR makes it abundantly clear that they will not tolerate Δ8-THC or any other hemp-derived tetrahydrocannabinols, even when the substance is derived from hemp and contains less than 0.3% Δ9-THC.
The ruling states “for synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
DEA never explicitly defines ‘synthetically derived.’ According to the Merriam-Webster Online Dictionary, “synthetic” is defined as “of, relating to, or produced by chemical or biochemical synthesis.” On the other hand, “derivative” is defined as “a substance that can be made from another substance.” So, while the 2018 Farm Bill explicitly legalizes hemp, including its derivatives, DEA has overstepped its authority to criminalize ‘synthetically-derived tetrahydrocannabinols.’
In their comments, NYCGPA highlights this discrepancy. In short, DEA is contradicting the language of the Farm Bill to retain purview over substances which, according to the Farm Bill, are legal. This poses an immense threat to producers currently manufacturing Δ8-THC products, who could lose a significant portion of their business due to oversteps from DEA. It would also criminalize products that many consumers now rely on for various effects.
Will DEA reconsider their ruling?
Unfortunately, given DEA’s track record with hemp, marihuana, and cannabinoids, as well as their reluctance to acknowledge the comment period in the first place, it is unexpected that DEA will give these comments much consideration. With over 3,300 comment submissions, however, it is possible that DEA will feel the immense blowback from the now-threatened hemp industry
If the DEA ruling remains unchanged, the hemp extract industry will certainly be doomed for failure.
For a more in-depth analysis of the DEA ruling, please see the NYCGPA comments below.